Justia Immigration Law Opinion Summaries

Articles Posted in US Court of Appeals for the Eleventh Circuit
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The Eleventh Circuit denied the petition for review of the BIA's final order of removal denying petitioner's application to adjust his status to lawful permanent resident based on his material support to a terrorist organization. Petitioner argued that his $100 payment to the Fuerzas Armadas Revolucionarias de Colombia was made under duress and was insignificant. The court held, however, that binding precedent, Alturo v. U.S. Att'y Gen., 716 F.3d 1310, where the BIA reasonably concluded that the statutory bar does not exempt material support provided to a terrorist organization under duress, foreclosed petitioner's duress argument. The court also held that the unambiguous text of 8 U.S.C. 1182(a)(3)(B)(iv)(VI) foreclosed petitioner's claim that the payment was insignificant. In this case, because petitioner gave money to known terrorists, he afforded "funds," and thus afforded "material support." View "Hincapie-Zapata v. U.S. Attorney General" on Justia Law

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The Eleventh Circuit granted the government's unopposed motion to amend the decision, vacated the previous opinion, and issued this opinion with the government's requested amendment.After determining that it has jurisdiction to consider the petition for review, the court held that the BIA erred by retroactively applying the stop-time rule to petitioner's pre-Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) conviction. The court held that neither IIRIRA section 309(a) nor 309(c)(5) mandates retroactivity, and that the BIA's interpretation of the stop-time rule does not warrant Chevron deference. In this case, by pleading guilty, petitioner gave up constitutionally protected rights with the reasonable expectation that his resulting sentence would not affect his ability to remain present in this country. The court explained that applying the stop-time rule retroactively would add a new and unforeseen consequence to his guilty plea by rendering him ineligible for cancellation of removal. Accordingly, the court reversed the BIA's decision and remanded for further proceedings. View "Rendon v. U.S. Attorney General" on Justia Law

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Petitioner sought review of the BIA's final order of removal, seeking discretionary relief under 8 U.S.C. 1255(i), which permits an alien who entered without inspection to obtain relief from removal if, among other things, the alien is the beneficiary of a labor certification. The BIA determined that petitioner was ineligible for discretionary relief. At issue is the scope of a jurisdiction-stripping provision in the Immigration and Nationality Act, 8 U.S.C. 1252(a)(2)(B), which provides that "no court shall have jurisdiction to review" "any judgment regarding the granting of relief" for certain enumerated categories of discretionary relief.The Eleventh Circuit overruled its prior precedent and held that its best interpretation of section 1252(a)(2)(B)(i) is that the court is precluded from reviewing "any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255" except to the extent that such review involves constitutional claims or questions of law. In this case, plaintiff claims that the BIA erred in its determination that he lacked the requisite subjective intent to misrepresent his citizenship status. Because such a challenge presents a factual question, the court lacked jurisdiction to review the claim under section 1252(a)(2)(B)(i). View "Patel v. United States Attorney General" on Justia Law

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The Eleventh Circuit denied a petition for review of the BIA's decision denying petitioner's claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The court held that petitioner is not eligible for asylum where substantial evidence supports the BIA's conclusion that the Sri Lankan army's alleged treatment of petitioner was not on account of a protected ground -- his imputed political opinion and his Tamil ethnicity -- but rather because of his possible involvement with a terrorist organization.The court also held that substantial evidence supports the BIA's conclusion that petitioner's fear of future persecution was not objectively reasonable because he did not show that the Sri Lankan government would target him or that the Sri Lankan government routinely persecutes Tamils. The court disagreed with the Ninth Circuit that the degree to which a group is disfavored alters an applicant's burden to establish either an individualized risk or a pattern or practice of persecution. Accordingly, the court held that the agency did not err by failing to analyze petitioner's well-founded fear of future persecution claim under the "disfavored group" test. Finally, the court upheld the BIA's finding that petitioner did not qualify for withholding of removal pursuant to the CAT. View "Lingeswaran v. U.S. Attorney General" on Justia Law

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Approximately 25 years after his guilty plea to resisting a police officer with violence, an IJ found petitioner removable and ruled he was no longer eligible for cancellation of removal on account of the stop-time rule.The Eleventh Circuit held that it was error to retroactively apply the stop-time rule to petitioner's pre-Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) conviction. The court found no clear congressional statement that the stop-time rule should be applied retroactively to pre-IIRIRA plea agreements like petitioner's and held that in the circumstances presented here—specifically, where petitioner's pre-IIRIRA plea agreement did not render him immediately deportable—applying the stop-time rule to his 1995 conviction would have an impermissibly retroactive effect. Therefore, the court reversed the BIA's decision and remanded for further proceedings. View "Rendon v. U.S. Attorney General" on Justia Law

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Canal A Media and Erick Archila appealed the district court's dismissal of their amended complaint for lack of subject matter jurisdiction, challenging the USCIS's decision to deny Canal A Media's petition for a work visa for Mr. Archila.The Eleventh Circuit reversed and held that the denial of Canal A Media's visa petition was final agency action under the Administrative Procedure Act (APA), because Canal A Media has gone as far as it can in obtaining administrative adjudication of the I-129 petition and neither plaintiff can displace that decision through Mr. Archila's removal proceedings. Therefore, the district court erred in dismissing the complaint for failure to satisfy the APA finality requirement.The court also held that 8 U.S.C. 1252(b)(9) and (g) do not bar plaintiffs' challenge to the visa petition denial. Section 1252(b)(9), commonly known as the "zipper clause," does not apply in this case where plaintiffs have not brought any challenge to Mr. Archila's removal proceedings. Section 1252(g) also does not apply because the I-129 petition is not a decision to commence proceedings, much less to adjudicate a case or execute a removal order. Accordingly, the court remanded for further proceedings. View "Canal A Media Holding LLC v. United States Citizenship and Immigration Services" on Justia Law

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The Eleventh Circuit denied a petition for review of the BIA's dismissal of petitioner's appeal from the IJ's order of removal, and denial of petitioner's motion for remand based on a claim of ineffective assistance of counsel.The court held that the BIA did not abuse its discretion in determining that petitioner failed to satisfy the procedural requirements set out in Matter of Lozada for her ineffective assistance of counsel claim. In this case, the affidavit does not allege that petitioner conveyed to counsel that his assistance was ineffective, or that petitioner ever attempted to contact counsel for the purpose of telling him so. Therefore, nothing in the affidavit indicates that counsel had any actual notice of allegations that his assistance had been ineffective or any opportunity to respond to those allegations, as required by Lozada. The court also held that petitioner's additional contention that he substantially complied with the notice requirement of Lozada by filing complaints against counsel with the Florida Bar and the Executive Office for Immigration Review cannot be sustained because it would eviscerate the separate nature of the Lozada requirements. Furthermore, petitioner's complaints to disciplinary authorities about counsel cannot support substantial compliance with the notice requirement because the Florida Bar and immigration review procedures of sending notice to the complained-of attorney are not automatically triggered. Finally, the court held that the BIA did not fail to give reasoned consideration to petitioner's evidence. View "Point Du Jour v. U.S. Attorney General" on Justia Law

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Petitioner petitioned the Eleventh Circuit a second time to review the BIA's final order of removal. The court had granted in part petitioner's first petition challenging the classification of his prior conviction for aggravated battery with a firearm as an aggravated felony under the residual clause definition of a crime of violence. The court held that the residual clause was void for vagueness under Sessions v. Dimaya, 138 S. Ct. 1204, 1210 (2018), and granted the petition. On remand, the BIA classified petitioner's prior conviction as an aggravated felony under the elements clause of the definition of a crime of violence pursuant to 18 U.S.C. 16(a).The court denied in part and dismissed in part the second petition, holding that petitioner's arguments -- that the Florida statute defining aggravated battery is indivisible and that the offense does not constitute a crime of violence -- are foreclosed by precedent. The court also held that it lacked jurisdiction over petitioner's argument that the BIA should review his application for deferral of removal, because petitioner failed to challenge the denial of his application in his appeal to the BIA. View "Lukaj v. U.S. Attorney General" on Justia Law

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The Eleventh Circuit granted a petition for review of the BIA's ruling that petitioner's conviction for sexual misconduct, N.Y. Penal Law 130.20, qualifies, under the modified categorical approach, as the aggravated felony of rape, 8 U.S.C. 1101(a)(43)(A), and a crime involving moral turpitude.Because the record of conviction does not make clear whether petitioner pleaded guilty to forcible or statutory rape, the court need not decide whether the New York statute is divisible as between those two different kinds of rape or whether the criminal complaint is a valid Shepard document. The court explained that, even if it were to resolve both issues in the department's favor, the criminal complaint would still fail to establish that petitioner pleaded guilty to forcible rape. Furthermore, the board failed to address whether statutory rape is a crime involving moral turpitude, so the court does not address that issue. Nor does the court need to address petitioner's alternative argument that he is eligible for a discretionary waiver of deportation even if he is removable. The court vacated and remanded for further proceedings. View "George v. U.S. Attorney General" on Justia Law

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Hamid Sow, a citizen of Guinea, sought review of the Board of Immigration Appeals’ (BIA) denial of his motion to remand based upon ineffective assistance of counsel, and motion to reopen based upon new evidence. In December 2016, Sow entered the United States and immediately applied for asylum because he was a homosexual, and the stigma of being a homosexual in a devout Muslim community in his homeland meant danger for himself and his family. Sow only spoke French, and relied on other detainees to relate information to his attorney. Without a translator, Sow's counsel did not fully understand Sow’s concerns: Sow tried to communicate to his counsel that the content of affidavits counsel “did not match up with what happened.” When asked about discrepancies in facts from the affidavits presented, Sow responded he could not explain them because he did not have an opportunity to read them. In his oral decision, the IJ said that he “unfortunately” had to deny Sow’s application based solely on an adverse credibility finding. In coming to this conclusion, the IJ specifically highlighted the inconsistencies in statements made in affidavits. He noted that, if it were true that Sow were a homosexual, then he “clearly should get” asylum. Sow, represented by new counsel, appealed to the BIA. He argued that the IJ erred in failing to assess Sow’s well-founded fear of future persecution. The BIA denied Sow’s motion to remand. It held that the IJ did not clearly err in making an adverse credibility determination and the record did not establish that Sow was entitled to relief “independent of his discredited claim of past harm.” It also denied Sow’s ineffective assistance of counsel claim, reasoning that counsel “reasonably relied on, and submitted the evidence provided by, the respondent and his friends.” The Eleventh Circuit concluded the BIA abused its discretion in denying Sow’s motion to remand based on ineffective assistance of counsel. It therefore granted Sow’s petition for review, vacated the BIA’s decisions, and remanded to the BIA with instructions to remand to the IJ for reconsideration of Sow’s asylum application. View "Sow v. U.S. Attorney General" on Justia Law